Bailey v. United States

This
matter is before the Court on Brent Bailey's petition for
writ of habeas corpus (filing 1) and some associated
motions. The petition will be dismissed, Bailey's motion
for copies will be denied, and Bailey's motion to proceed
in forma pauperis will be granted.

Bailey's
petition is asserted pursuant to 28 U.S.C. § 2241,
seefiling 1 at 1, which sets forth the
Court's authority to grant writs of habeas corpus. But
there are two significant problems with Bailey's
petition. The first is that, for a § 2241 petition, it
is asserted in the wrong district. A § 2241 petition
should be brought in the district of incarceration.
Nichols v. Symmes,553 F.3d 647, 649 (8th Cir.
2009); see Rumsfeld v. Padilla,542 U.S. 426, 442-50
(2004). In Bailey's case, at present, that is the
Southern District of Illinois. Seefiling 1 at
6. Jurisdiction does not lie in Nebraska. SeePadilla, 542 U.S. at 443.

The
other problem, however, is that Bailey's claims do not
support a proper § 2241 petition. A claim attacking the
validity of a conviction or sentence is properly entertained
in a 28 U.S.C. § 2255 motion before the sentencing
court. Nichols, 553 F.3d at 649. On the other hand,
a claim attacking the execution of that sentence should be
brought in a § 2241 petition. Nichols, 553 F.3d
at 649. While Bailey invokes § 2241, the
substance of his claims plainly attacks the validity
of his conviction and sentence. See filing 1. They
belong in a § 2255 motion, not a § 2241 petition.

The
difficulty for Bailey, of course, is that he has already
filed a § 2255 motion, and it was denied. See United
States v. Bailey, No. 4:12-CR-3034, 2013 WL
6713173 (D. Neb. Dec. 19, 2013). And he may not file a second
or successive § 2255 motion without leave from the U.S.
Court of Appeals for the Eighth Circuit. See 28 U.S.C.
§ 2244. Nor may he accomplish an "end
run" around § 2244 by restyling his § 2255
claims as a § 2241 petition. See Abdullah v.
Hedrick, 392 F.3d 957, 959-60 (8th Cir.
2004).[1] In short, Bailey's purported §
2241 petition is actually an improper successive § 2255
motion- and, even if it was a proper § 2241
petition, it's been filed in the wrong place.
Accordingly, the Court will dismiss the petition.
See 28 U.S.C. § 1915A.

[1] While the "savings clause"
of &sect; 2255(e) permits a &sect; 2241 petition if the
&sect; 2255 remedy is inadequate or ineffective to test the
legality of a conviction or sentence, the inmate bears the
burden of showing that the remedy is inadequate or
ineffective, and the procedural bar presented by a previous
&sect; 2255 motion does not suffice. See, Lopez-Lopez v.
...

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